Wills and Estates Flashcards
What is a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
An application for family provisions made to the court to set aside the terms of a will (or vary an intestacy) on the grounds that reasonable financial provision has not been made for the applicant.
Need:
QUALIFYING APPLICANT + REASONABLE FINANCIAL PROVISION NOT MADE
When must a claim under the Inheritance (Provision for Family and Dependants) Act 1975 be brought?
Within 6 months from the issue of the grant of representation to the PRs, or later with leave of the court.
Who is a QUALIFYING APPLICANT under the Inheritance (Provision for Family and Dependants) Act 1975? (i.e., who can be the applicant?)
- Surviving spouse or civil partner
- Former spouse or civil partner
- Child of deceased (or a person treated as a child of the family, like a stepchild)
- Anyone maintained by the deceased (substantial contribution towards the reasonable needs of the claimant)
- Anyone living with the deceased for the two years immediately before death as their spouse/partner.
What constitutes “reasonable financial provision” for a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
Two part test:
1) Does the will/intestacy rules fail to make reasonable financial provision for the applicant?
2) If so, what would be such provision?
If the applicant in a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is a SPOUSE, what is the standard for “reasonable financial provision”?
Such financial provision as would be reasonable in all the circumstances, whether or not required for maintenance.
If the applicant in a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is NOT A SPOUSE, what is the standard for “reasonable financial provision”?
Such financial provision required for their maintenance so they can live decently and comfortably according to their situation.
This is objective.
What is the order of entitlement to a grant of letters of administration with will annexed?
rule 20 of the Non-Contentious Probate Rules (‘NCPR’):
- The residuary beneficiaries have the best entitlement to administer the estate.
- If there is more than one person of equal rank, the beneficiary with a vested interest is preferred.
Different Grants of Representation
Grant of Probate: Executor expressly appointed by will
Letters of Administration with Will Annexed: Deceased left a valid will, but the executor cannot be appointed (e.g., they passed away)
Letters of Administration: Deceased died intestate
Grants De Bonis Non: Second grant made if last surviving PR dies. Not necessary if there is a chain of representation.
What can a beneficiary do if they want to prevent a grant of representation?
They can lodge a caveat with HMCTS Probate Service to prevent the issue of a grant of representation.
They can do this if they think the executor named in the will lacks mental capacity or the will is invalid.
How long are caveats valid for?
6 months
What is a Citation to take Probate?
A citation against an executor that has not applied for a grant of representation and does not intend to do so, and who cannot renounce probate because they intermeddled in the estate.
Once cited, they must proceed with an application for a grant of probate, or they will be passed over (grant of letters of administration with will annexed.)
What is a Citation to Accept or Refuse Grant?
Used to clear off a person with a prior right to any type of grant who has not applied, and does not intend to apply, for a grant.
What is the power of appropriation?
Executors can use an alternative asset to satisfy a legacy or interest in the estate, provided no specific beneficiary is affected.
However, unless the will provides otherwise, a PR cannot make an appropriation in their own favour to satisfy a pecuniary legacy with an asset other than cash or the equivalent of cash (e.g., government stocks or quoted shares).
What is the effect of marriage or a civil partnership on an existing will?
The original will is revoked UNLESS it appears from the will that they intended to marry and not revoke the will
What is the effect of divorce, dissolution, or nulity on an existing will?
Former spouse/civil partner is treated as having died on the date of the divorce.
If the former spouse was named as executor in the will, that will be ineffective
Any gifts under the will are revoked
Is a will validly revoked if a testator directs a third party to go and destroy/tear up their will?
A will may be revoked by intentional destruction, and the destruction may be by a third party acting on behalf of the testator and at the testator’s direction.
However, the testator must be present at the time of the destruction.
How do you qualify for a reduced IHT rate?
To qualify for the reduced inheritance tax rate, at least 10% of the net chargeable estate needs to be left to charity.
NOTE: Remember to subtract the nil-rate band from the estate before x0.1
What is the order of entitlement to a Grant of Letters of Administration? (Intestacy)
1) Surviving spouse or civil partner
2) Issue of the decedent
3) Parents
4) Surviving brothers and sisters.
- Rule 22 of the Non-Contentious Probate Rules (‘NCPR’)
NOTE: A minimum of two administrators is required when there is a minor beneficiary
How many administrators are required when there is a minor beneficiary?
A minimum of two administrators
What is the order of entitlement to a Grant of Letters of Administration with Will Annexed?
1) Trustee of the residuary estate
2) Residuary beneficiaries (court prefers B’s with vested interest, if applicable)
3) PRs of residuary beneficiaries
4) Any other B or creditor
5) PRs of any other B or creditor
Rule 20 of the Non-Contentious Probate Rules (‘NCPR’).
What is a Benjamin Order?
A court order giving the personal representative leave to distribute the estate, taking into account the interests of a known claimant who cannot be found.
How can an executor protect themselves from claims by unknown creditors before they distribute an estate?
By advertising the decedent’s death in the London Gazette, a local newspaper, and any other appropriate newspaper.
They then must wait at least two months from the date of the advertisements before distributing the estate.
